IN 1793, Congress adopted the Fugitive Slave Act, which allowed slaveholders to track down and capture escaped slaves and punished anyone who abetted their escape. Federal marshals and private bounty hunters stormed into free states, arresting runaway slaves, and even children of slaves who had been born in the North. Many free blacks were caught up in the dragnet and illegally sold into slavery.
Most Northern states declined to enforce the laws, and passed “safe haven” bills that provided for jury trials and other protections for slaves. This provoked a clash between federal and state jurisprudence, because while the Fugitive Slave Act was federal law, the states had the right to enforce their own laws against kidnapping.
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Sound familiar?
President Trump has empowered federal agents to arrest and deport undocumented immigrants, no matter where they reside, and insists that local police officers be employed to help enforce the orders. He has pledged to cut off federal funding for communities that refuse — the so-called sanctuary cities — and his threat has had the desired chilling effect. Last month, Florida’s Dade County, which includes immigrant-rich Miami, refused to adopt sanctuary status in what one county commissioner called “a financial decision.” Rhode Island’s Democratic governor said recently that she wasn’t yet willing to sacrifice some $3 billion the state receives from Washington to protect illegal immigrants. The city of Lowell also took a pass.
Mayor Martin Walsh of Boston has stood firm against Trump’s bluster, despite a potential loss of millions in transportation, health care, and education funds. Perhaps Walsh knows what Trump may soon find out: When it comes to coercing local communities to carry out federal orders, the law is not on Trump’s side.
Let’s review:
In 1997, county sheriffs in Montana and Arizona sued over requirements in the gun-regulating Brady law that local law enforcement officers conduct background checks for firearms permits. Citing several previous cases, the Supreme Court ruled with the sheriffs that the federal government couldn’t compel states to administer the Brady law.
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More recently, in the 2012 case that preserved Obamacare, the court found that withholding all federal Medicaid funding from states that refused to join in the Affordable Care Act violated the Constitution’s 10th Amendment, which establishes states’ rights. The part of the decision that outlawed coercion of the states through the cudgel of federal funding was joined by seven of the sitting justices, including Antonin Scalia, Samuel Alito, and Clarence Thomas.
Ironically — or deliciously, depending on your point of view — the conservative principle of states’ rights is at play in both decisions. There have been some exceptions, such as conditioning federal highway funds on states enforcing speed limits, but overall the court has said that the federal government cannot “commandeer” states to do its bidding. Laurence Tribe, the constitutional law scholar, says Trump’s threats — both overbroad and out of scale — are clearly suspect. “I think he’s violating the Constitution up and down,” Tribe said.
Of course, parallels to the Fugitive Slave Act are not perfect. In 1842, the Supreme Court ruled in favor of a bounty hunter who captured and deported a slave woman who had run to Pennsylvania for sanctuary. But in an aside that opened a commodious loophole, Justice Joseph Story wrote that individual states nonetheless did not have to help in the hunting or recapture of slaves. “It might well be deemed an unconstitutional exercise of the power” he wrote, “to insist that the states are bound to provide means to carry into effect the duties of the national government.” Congress moved swiftly by passing an even stricter Fugitive Slave Act in 1850 (eventually repealed in 1864), but the underlying constitutional principle remains.
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The last word hasn’t been written, but there is ample precedent to find that Trump would be in violation of the Constitution if he stripped federal money from municipalities that won’t abet his immigration order. So take heart, resisting communities! You have nothing to lose but your chains.
Renée Loth’s column appears regularly in the Globe.